Sri Lanka: Implications of Silencing the Judiciary

19 Jan, 2013    ·   3798

M. Mayilvaganan discusses the potential threat to democracy the country faces in light of recent events

The impeachment of Chief Justice Shirani Bandaranayake in Sri Lanka has drawn significant international attention to President Rajapaksa’s government. Concerns about his model of functioning and its implications on the basic principles of democracy have been raised.

Justice Bandaranayake’s impeachment and her post subsequently being filled by the government’s senior legal adviser Mohan Peiris, reflects Rajapaksa’s post-war strategy: “My way or the highway”. After dislodging the Tigers and neutralising former Army Chief Sarath Fonseka, as well as eventually silencing the most powerful institution – the army, the President conclusively proved his absolute dominance by impeaching the Chief Justice of the Supreme Court.

Establishing Supremacy Over Democratic Institutions: Rajapaksa Style
There were no surprises when Rajapaksa ratified the Parliament’s impeachment motion, moved by the SLFP-UPFA combine, instead of referring to the expert committee. Just as was the case when he pushed for the proposed legislation of the Divi Neguma Bill that would reportedly increase the resources of the Colombo government, particularly the President’s brother Basil Rajapaksa’s powerful economic development ministry. This deed seems the latest proverbial nail on the potential challenger – the judiciary – to his “autocratic” reign. Notably, the judiciary was the only institution that was, perhaps, out of Rajapaksa’s supremacy up until now. It also sends a clear message to the rest that dissent is not taken lightly and that nothing perceived as a threat or act leading to the erosion of Rajapaksa’s power will be tolerated. Indeed, it is a well-calculated move. Rajapaksa knows that the legal fraternity is fragile and the opposition is weak and divided, as opposed to his own popularity in south Sri Lanka. Hence he was assured that the impeachment of the Chief Justice would not unleash a reaction on the lines of what was witnessed in Pakistan when its Chief Justice Iftikhar Chaudhry was sacked.

Impeachment and International Criticism
The impeachment process against Justice Bandaranayake, however, drew intense criticism from the local and international media, the International Commission of Jurists (ICJ) and the global community. The media has described the government’s act as “frightening”, “predetermined”, “unfair”, and an “illegal attempt to ensure a servile judiciary”. The ICJ, in particular, criticized the Sri Lankan government by stating it did not ‘adhere to fundamental principles of due process and fair trial’. The US State Department alleged that the impeachment raised ‘serious questions about the separation of powers in Sri Lanka, which is a fundamental tenet of a healthy democracy’. Canadian Prime Minister Stephen Harper openly stated that the impeachment process appeared to him ‘to be highly politicized and lacking transparency and respect for the guarantees of due process and fair trial’.

Critics have also warned that the sacking of the Chief Justice could trigger a constitutional crisis and may damage what remains of Sri Lanka’s democracy.

The Probability and Nature of Implications
Is this a game changer in Sri Lankan politics? Considering the present situation in Sri Lanka, where President Rajapaksa enjoys unchallenged public popularity having learnt to manage the “big-powers” tactically, the possible consequences of the impeachment appear few.

Amongst the probable implications for Rajapaksa’s government, the foremost may be disunity with the judiciary in due course, as they may need to heed to the regime or else face the music, perhaps even contributing to institutional putrefaction. On the contrary, the legal fraternity, particularly the senior judges minus the newly appointed Chief Justice, may also take a radical position on certain government policies when they come up for legal review. This might include the case of the impeachment of the Chief Justice, which may heighten the clash between the executive and the judiciary.

Second, the international community may scale up their voices against Sri Lanka on the grounds of human rights violations etc., such as at the U.N. Human Rights Council when Sri Lanka’s compliance with a US-sponsored resolution is considered again in March 2013.

Third, with the next Commonwealth Heads of Government Meeting (CHOGM) scheduled for October 2013 in Sri Lanka, leaders of commonwealth nations may refuse to attend it or may seek a change in venue; Canada’s blunt response to the impeachment being a case in point.

Finally, the undermining of an independent judiciary and democracy with the sacking of the Chief Justice may perhaps have an impact on foreign investment in Sri Lanka. Concerns being raised by the US, the UK, Canada, the European Union, and the United Nations on these issues significantly flag the possibility.

International scrutiny and embargos may send tough messages to President Rajapaksa who is keen to further Sri Lanka's image overseas to attract more investment, and to undo the controversy surrounding alleged war crimes. However, in the absence of sanctions being implemented on Sri Lanka, and no warnings being issued by the international community to its citizens on travelling to the island nation; as also with the continued support of the Chinese, the repercussions may not hurt the government although they may embarrass the Rajapaksas. Interestingly, the Rajapakas had projected all their adversaries - from foreign powers to Gen. Fonseka and now Justice Bandaranayake - as the opponents of the State or the State’s interests. Until there is a major disillusion among the Sinhalese either on the issue of increasing unemployment or price inflation, the Rajapaksas perhaps would enjoy absolute power and the country may not witness any significant game changing moment.